Water

Our Water practice develops creative, strategically tailored solutions to challenges posed by the nation’s clean water laws. In particular, we focus on the growing convergence between water supply, use, and quality issues. We help clients navigate this dynamic by providing strategic advice and ongoing support during project planning, in stakeholder and permit negotiations, and in litigation and enforcement proceedings.

Our substantial expertise under the CWA and other federal laws and our long experience representing developers, industry and local governments on land use issues, provide us with the substantial resources necessary to help our clients achieve their objectives in this rapidly evolving environment. Because these issues often arise in novel settings involving complex political relationships as well as arcane and sometimes competing legal constructs, a steady and experienced hand is especially important in this practice area.

Water: A Strategic Resource

The demand for unlimited quantities of high-quality water is great and growing. Obtaining, securing, conveying, treating and delivering water have never been greater challenges than they are today. Water use and supply, historically addressed as regional issues of resource allocation and land use, are increasingly affected by federal regulatory considerations such as water quality under the Clean Water Act and species management under the Endangered Species Act. Challenges and opportunities in the Water Supply & Quality arena arise from numerous sources, including TMDLs and water quality trading, habitat and ESA requirements, competing demands for scarce water resources, agricultural and forestry water management practices, water storage, transfer and conveyance rights, wetlands preservation and mitigation, and the watershed-based planning and permitting process.

Even after water rights are obtained, transporting the water and regulating its quality and use is subject to increasing regulatory scrutiny. Strategic planning to ensure necessary water supply and allowable uses is increasingly critical for the manufacturing, agriculture and development industries as well as public water supply and treatment authorities.

Core Services

Strategic advice and regulatory counseling

Permitting

Assistance with compliance management programs

Initiation or suppression of EPA rulemakings

Representation in enforcement actions and criminal proceedings

Representation in administrative litigation, as well as citizen suits and other contested proceedings before federal and state agencies and in the courts

Representative Matters

Advising several municipal water systems across the U.S. on EPA’s “wet weather” enforcement initiative and on the upgrading and development of municipal water infrastructure. Most recently, we assisted the San Antonio Water System to negotiate a $1.1 billion Clean Water Act Consent Decree.

Routinely counseling direct discharge clients regarding the many ways, such as water quality trading and non-traditional permitting mechanisms, in which they can include agricultural and urban stormwater runoff nonpoint sources in discussions and allocations under the TMDL and watershed-based permitting frameworks in order to distribute the burden of ensuring required water quality among all contributors.

Working with industry, water infrastructure managers and developers to obtain approval of new land uses that optimize both water supply and water runoff quality.

Counseling clients on strategic planning for water use and waste discharge permits by assessing current and future water resources, permit opportunities and limitations, competing and complementary uses, and water quality constraints.

Conferring with the agricultural chemical industry and representing individual producers of agricultural chemicals in regulatory arenas where states seek to impose CWA-based permits on the application or any subsequent environmental transport of registered pesticides or their breakdown products.

Representing the aquatic recreation industry in proceedings designed to establish the proper means of assessing and addressing any in-stream impacts relating to the use of federally-registered pesticides in anti-fouling bottom paints.

Working with trade groups, interstate associations and industry to quantify the benefits of agricultural and stormwater Best Management Practices so these benefits are recognized and fully accounted for in watershed-based planning and permitting and in TMDL processes.

Obtaining the voluntary withdrawal of a total maximum daily load (TMDL) for a major, multi-jurisdictional waterbody on behalf of a coalition of 17 large industrial and municipal clients. The TMDL, developed by an EPA Region, relied upon a flawed model and incomplete data to set unrealistic (and probably unnecessary) goals for nutrient reductions. Teaming with the State, we convinced the federal agency to withdraw its TMDL rather than litigate the validity of a nutrient model that EPA was preparing for use nationwide. EPA agreed to adopt an adaptive management approach that will allow its science and data to mature, while also allowing non-point source initiatives time to remedy the underlying nutrient problem and eliminate the need for further reductions by point sources.

Resolving favorably one of the first citizen suits brought under the Clean Water Act. The case broke ground on the use of a Special Master as a mediator in private environmental enforcement actions – a technique that allowed us to ground truth plaintiffs’ more exaggerated claims and arrive at a realistic package of measures that could be undertaken without the need for costly and definitive litigation. This technique has become a part of the standard toolkit for those addressing the rising tide of private enforcement actions.

Working with EPA to defer a multibillion dollar rulemaking by conceiving and securing adoption of the first internationally-applicable environmental standard for a commercial chemical product. Uncertain of the composition of this chemical product, EPA threatened to develop a new effluent guideline to control discharges from the industry in which it is utilized – our client. Recognizing that the chemical product’s manufacturers could not release their proprietary product formulations, we approached a private standards organization to develop a toxicity performance standard applicable to all products of this type. That innovative standard, which remains in force, effectively limits the toxicity of the chemical product, has resulted in a reduction of more than 150% in the toxicity profile of the products now on the market, and has eliminated a major source of the Agency concern about discharges from our client industry.